The Ontario Superior Court of Justice stayed a criminal negligence charge against a boom truck worker who pleaded guilty to an Occupational Health and Safety Act charge three years earlier after causing a workplace fatality. The Court reasoned, in part, that the police’s uncertainty in laying the criminal charges after the worker’s guilty plea to the OHSA charges constituted a breach of the sense of fair play. The Court cited a breach of sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Background

On June 21, 2012, the worker was attempting to load a utility trailer onto a one-ton truck and trailer so that it could be transported. The worker was using his boom truck (a commercial truck with a crane mounted to the back) to execute the loading. The boom truck toppled over, pinning the deceased. The worker’s failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.

After an investigation was done by the police and the Ministry of Labour (MOL), the worker was charged under the OHSA and received a fine of $3,500.00.

Charges for the worker, however, did not end there. Nearly five months after the worker’s guilty plea on the OHSA charge and more than two years after the June 21, 2012 accident, a charge of criminal negligence was laid against him for the same accident.

The worker had argued that the Crown’s failure to proceed in an expeditious manner violated his Charter rights, and because of such failures, he had been prejudiced in that his trial would take place approximately five years after the events giving rise to the charges occurred. “Not only has this delay resulted in one witness dying, but the memories and recollections of the other witnesses have been affected by the passage of time” (Paragraph 11 of the case).

In part, the Crown explained that it decided to wait until the MOL’s investigation was complete before proceeding with criminal negligence charges and argued that it acted expeditiously in the factual context of the case.

Conclusion

The Court concluded that the worker’s Charter rights were breached (section 7, the right to life, liberty and security of the person and section 11 (d), the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal). Therefore, the Court stayed the proceedings on the criminal negligence charge.

The Court’s reasoning included:

There was no reason why the police investigation could not have proceeded in tandem with the investigation of the MOL. Though the MOL has greater powers of search and seizure, there was nothing precluding the police from obtaining a search warrant so that the same evidence could be retrieved, the Court noted. See paragraph 42 of the case.

The worker has been prejudiced by the pre-charge delay in laying the criminal negligence charge. Not only was there the additional turmoil associated with prolonging the matter, but also the financial cost of defending two separate charges arising from the same facts, noted the Court. See paragraph 44 of the case.

An accused should have a sense of security that when they decide on a set of charges, that decision resolves the case in its entirety. “He or she should not be under a sense of false security. … To have further charges laid after such a lengthy period of time causes me to find a degree of unfairness which the community would not accept,” stated the Court. See paragraph 47 of the case.

The potential for prejudice arising from the following: 1) The accused pled guilty to the charge under the OHSA; should such evidence be led and be admissible, considering that it was a jury trial, the potential for prejudice looms large; 2) There was the death of a witness, who the Worker claimed to be a material witness. See paragraphs 48 and 49 of the case.

A little more about Charter rights

With a few exceptions, any person in Canada, whether a Canadian citizen, a permanent resident or a newcomer, has the rights and freedoms held in the Charter.

The Charter is a part of the Canadian Constitution; the Constitution is the supreme law of Canada. This means that, all other laws must be in harmony with the rules set out in the Constitution; since the Charter is part of the Constitution, laws that limit Charter rights may be deemed invalid (with possible limits).

Should an individual’s Charter rights be denied, the Charter provides for legal “remedies.” As seen in this case, an individual can ask a court for a remedy that is “appropriate and just in the circumstances.” For example, like the above case, a court can stop proceedings against an individual charged with an offence.